J SATYAVRATA Vs. MOHAMEDBHAI ABDOTHUSSEN SADIQ BAHREINWALLA

JUDGEMENT

(1.) The two petitioners before us are the tenants of flats on the 2nd and 4th floors of New Readymoney Building (renamed Alhatiz Building) situate at clare Road, Byculla, Bombay. The resondents are the present landlords of this building floors and has in all 55 tenants. The tenants were in enjoyment of the service of a lift in this building. It appears that in 1974 the respondents' predecessors-in- title had partially withdran the lift facility by restricting the working hourse of the lift from 10.00 a.m. to 2.00 p.m. and from 4.30 p.m. till 8.30 p.m. in the place of the original working hours. Viz. From 9.00 p.m. Criminal proceedings were thereupon initiated against the respondents' predecessor-in title by the tenants which resulted in the testroation of the lift service to the original hours, viz, from 9.00 P.M. and the concomitant withdrawak if the criminal proceedings. On 1st aprill., 1975, the respendents became the owners of New Ready -money Building, whereafter, according to the petitioners, the respondents started harassing the tenants in various ways, with the result that the tenants filed proceedings against the landlords in the court of small causes for fixation of standard rent and for a permanent injunction restraining the respondents from cuting off the electric supply. In Dec.,1975, the lift facility was totally withdrawn by the landlords and despite the tenants' requests to them, the same was not restroed. Thereupon in march, 1976 the present petitioners and another tenant, one Mrs. Mendes, residing on the 3rd floor, filled an Applicatopm no.424/RES of 1976 in the court of small causes against the landlords under S. 24(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act.1947 (referred to hereafter as "the Rent Act") for restroation of the lift facility. In those proceedings, no reply was filed by the landlords themselves. However. Their Rent Farmer one shoeb (shaikh) Hashim contractor filed a reply denying that the landlords had cut off or withheld the lift service either directly or indirectlyand urged that if hey had done so, it was for just or sufficient cause on the ground that the lift having been installed prior to 1940 had outlived its utility; that the cost of repairs would be in the vicinity of Rupees 20,000/- which the landlords could ill-afford; and that even if repairs were carried out to the lift, no useful prupose would be served as the repaids would not last for any length of time. In those proceedings, the petitioners and other tenants gave evidence. The landlords however did not step into the witness-box but contented themselves by leading the evidence of thier Rent Farming contractor. The trial Court passed its impugned order on 7 th Dec., 1976 . Following the decision of the learned single Judge of this court in Dhanrajmual Gobindram & co., pvt. Ltd. V. The state of Maharashtra, 75 Bom LR 245 : (1973 Cri LJ 1848), the trial court upheld the landlords' contentions and dismissed the tenants' application, holding that it had not been established that the landlords had cut off or withheld the lift service and that if they had done so, it was for just or sufficient cause. The petitioners thereupon preferred a revision application to the appellate side of the Court of small causes. Relaying on the decision in Dhanrajmal's case, the lower appellate court held that while it was the landlords' case that the repairs required to be carried out by the Lift Inspector would come to Rs.20,000/- (Rupees twenty thousands), the landlords had failed to adduce any reliable evidence that the cost of the repairs would be that much. It was further held that on the showing of the tenants themselves the cost of repairs would come to Rs.2,000/- (Rupees two thousand) but even that expenditure the landlords could not be asked to incur as rents are controlled by the Rent Act.with the observation that- "........... it is difficult to see that how in this case it can be said with certainty that the respondents had done a particular act or deliberately ommitted to do an act which they were bound to do and which has resulted in the stoppage of the lift. The only thing that can be definitely said against the respondents is that they have not carried out the repairs as informed by the Lift Inspector in his letter at Ext.4:. the lower appellate court dismissed the petitioners' revision application on 31st dAug., 1977.

(2.) Hence the present special Civil Application was filed by the present petitioners for setting aside the impugned orders dated 7th Dec. , 1976 and 31st August, 1977 passed by the trial court and the lower appelate court respectively, and for restoration of the lift service from 10.00 a,m. To 2.00 p.m. and from 4.00 p.m. to 8.30 p.m.

(3.) This special civil Application came up before our learned Brother dharmadhikari, before whom it was urged on behalf of the petitioners that the lower courts were in error in following the decision of the learned single judge in Dhanrajmal's case (1973 Cri L.J. 1848) (Bom) in preference to an earlier decision of another learned single Judge of this court in the case of Bombay Bullion Association Ltd. V. Jivatal Pratapsi, (1960) 62 Bom L.R. 380. To the contrary were the submissions urged on behalf of the respondents. In view of the apparently conflicting decisions of the two learned single Judges of this court in dhanrajamal's case and the Bombay Bullion case, Dharmadhikari,J. Was of the view that the matter should be placed before a Division Bench and accordingly reported the matter to the and accordingly reported the matter to the learned Chief Justice. It is in these circumstances that the present special Civil Application has come up before us.